Court slams prosecutor in San Jose sex case

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A prosecutor who was trying to get a San Jose man committed to a mental hospital as a sex predator went over the line, says a state appeals court. Way over.

First, he told jurors that if they refused to lock up defendant Dariel Shazier, they might have a hard time explaining it to their neighbors.

Then, the prosecutor suggested — without any evidence, according to the court — that Shazier had committed other sex crimes that had never been reported. He told the jury that Shazier, if released, would be living in his mother’s home near several schools. He said an expert witness testifying for the defense had a history of speaking up for horrific sex criminals. He referred to other defense witnesses as “serial rapists and child molesters.” And he told jurors that, when they listened to Shazier’s testimony at the trial, they were being “groomed,” a term that refers to molesters’ manipulation of their prey.

The jury voted to classify Shazier as a sexually violent predator and keep him in a state mental hospital, where he has been held since 2003 after serving nine years in prison for sex crimes involving a minor. But the Sixth District Court of Appeal said Thursday that Shazier is entitled to a new trial because of “flagrant misconduct” by the prosecutor, Chief Assistant District Attorney Jay Boyarsky.

“The prosecutor engaged in a pervasive pattern of inappropriate questions, comments and argument, throughout the entire trial, each one building on the next, to such a degree as to undermine the fairness of the proceedings,” said Presiding Justice Conrad Rushing in the 3-0 ruling.

Worst of all, he said, was Boyarsky’s insinuation during closing arguments that the jurors’ friends and neighbors would condemn them if they voted to set Shazier free.

“Public opinion is not a proper consideration for a jury,” Rushing said. “This reasoning has been condemned as faulty since the time of ancient Greece.”

Boyarsky, the top aide to Santa Clara County District Attorney Jeff Rosen, issued a statement saying he had acted in good faith. But “based on the court’s opinion, if I had it to do over again, I would make my arguments differently,” he said.

Rosen struck a similar note. “Any prosecutor in my office may err, and when we do, we learn from it and improve,” he said. But he added that his office will try again to keep Shazier hospitalized if doctors conclude he is dangerous.

Shazier pleaded guilty to three felony sex charges in 1994 and was sentenced to nearly 18 years in prison. He was due to be released after serving half his sentence, but was instead sent to a state mental hospital while prosecutors sought to confine him for treatment as a sex predator, said his lawyer, Jill Fordyce. Under state law, a convicted sex criminal can be hospitalized indefinitely after completing his sentence if a jury finds he has a mental disorder that makes him likely to engage in sexually violent behavior.

The first trial on that question ended in a hung jury. A second trial ended in a jury verdict against Shazier, but the same appeals court overturned that verdict in 2006 because of misconduct by another prosecutor. Now the results of the third trial have been set aside as well, but Shazier remains confined.

Fordyce said the evidence that Shazier poses an ongoing danger to the public is “pretty weak.” She said multiple witnesses testified that he has worked hard to rehabilitate himself for more than a decade. A defense mental health expert testified he could be safely released. And the condition for which he was diagnosed — “hebephilia,” or a sexual attraction to teenage boys — is not even listed in the American Psychiatric Association’s manual of recognized mental disorders.

“This was a case that begged to be reversed because of unfairness,” Fordyce said.

Attorney General Kamala Harris’ office, which defended Boyarsky’s comments before the appeals court, could appeal the ruling to the state Supreme Court.